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MELISSA BLOCK, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.

ROBERT SIEGEL, host:

And I'm Robert Siegel.

Today the Supreme Court heard arguments in a major environmental case. It tests whether power plants and factories have to install anti-pollution devices when they modernize. The case was brought against Duke Energy. When the company refurbished eight plants in North and South Carolina, it did not install anti-pollution devices. The EPA and environmental groups say it should have. The Clean Air Act requires it.

BLOCK: Duke is not the only power producer that's been threatened with the Clean Air Act. The EPA wanted the Tennessee Valley Authority to clean up its plants, too. That didn't work, so the state of North Carolina is taking a different tack - it has filed a public nuisance lawsuit against the TVA to try to cut down on the pollution that's drifting in from outside its borders.

NPR's Elizabeth Shogren reports.

ELIZABETH SHOGREN: North Carolina's Attorney General Roy Cooper is visiting the Smoky Mountains on a crisp autumn day. He's taking a break from his busy schedule to focus on the scenery in this picturesque place called Sapphire Valley.

Mr. ROY COOPER (Attorney General, North Carolina): It's a beautiful day here in the North Carolina Mountains, but that quality of life is being threatened by pollution that's coming across the state line.

SHOGREN: From places like Ohio, South Carolina and Tennessee. But today, the air is so clear you can make out every nook and cranny in a rock outcropping on a mountain just across the way. It's so gorgeous, it almost irritates Cooper because it shows just how much North Carolina is missing out. On many days, especially in the summer, the haze is so thick here that instead of seeing ridge after ridge for 100 miles, visitors can barely make out the closest mountain.

Mr. COOPER: Anyone who has been in the Smoky Mountains on an incredible day like today know that haze should not be a part of the Smoky Mountains.

SHOGREN: So Cooper is taking action against one neighbor in particular.

Mr. COOPER: We know that air pollution from the Tennessee Valley Authority is making people sick.

SHOGREN: TVA is a corporation owned by the federal government that operates all the coal-fired power plants in neighboring Tennessee and several more in Kentucky and Alabama. And Cooper says it's a major cause of North Carolina's bad air.

Mr. COOPER: It's causing haze across our mountains, it's killing our trees, it's polluting our waters. We want it to stop. We've asked them nicely. We've tried to work with them. They've not responded. Litigation is the last resort.

SHOGREN: Cooper tried to work with the Environmental Protection Agency and use the Clean Air Act. None of that worked. Now he's turned to the same legal tool that property owners have used through the ages to settle disputes with neighbors - a public nuisance suit.

Mr. COOPER: When you have people being forced to go to the hospital, when you have little children with asthma who can't go outside on particularly hot stuffy days, when seniors can't take a walk because of breathing problems, when tourism dollars are being lost - that's clearly a public nuisance under the law.

Mr. BILL BAXTER (Board of Directors, TVA): TVA is very easy to pick on. It's a big organization with a big target on its back.

SHOGREN: That's Bill Baxter. He sits on TVA's board of directors. He says it's ridiculous to argue that TVA's contributions to North Carolina's bad air constitute a public nuisance because there are so many other sources of pollution.

Mr. BAXTER: Well, under that theory, he ought to sue every automobile owner in his own state, every owner of a lawn tractor and everyone who has a power plant in North Carolina. But, you know, that's not good politics.

SHOGREN: In fact, the biggest source of dirty air in North Carolina is its own power plants. And Baxter says over the years, TVA has done far more than utilities in North Carolina to improve air quality.

Mr. BAXTER: The facts are that we are spending billions of dollars of our ratepayers' money and we're getting huge reductions in our emissions. We're proud of the progress we've made. But we're not done yet. And we're going to keep on.

SHOGREN: To prove their point, TVA arranges a visit to Bull Run. It's one of the largest of TVA's 11 coal-fired power plants. It was built in the 1960s, before advanced pollution controls were required.

(Soundbite of horn)

Mr. NATHAN BURRIS (Manager, Bull Run power plant): That's our air-powered sonic horn that is used to clean the flash.

SHOGREN: Nathan Burris manages Bull Run.

Mr. BURRIS: There's a scrubber.

SHOGREN: We look over the guard rail at the beginnings of the construction of a huge scrubber. Once built, it will strip 95 percent of the sulfur dioxide from Bull Run's emissions. That's the pollutant that's most responsible for the haze that obscures views.

Bill Baxter, the TVA director, says this project is only a fraction of what they're doing to improve air quality.

Mr. BAXTER: We have now reduced our emissions from our coal-fired plants by 80 percent. We've spent $4.4 billion doing that. We've got another $3 billion or so to spend to comply with new federal regulations.

SHOGREN: And yet, you are one of the biggest emitters of pollution in the whole country.

Mr. BAXTER: We are a major emitter. We've also had major progress in reductions. We're in compliance with every part of the Clean Air Act.

SHOGREN: That's not what the EPA thought. During both the Clinton and Bush administrations, it found TVA had violated the Clean Air Act by failing to install modern pollution controls. But the agency hasn't been able to enforce those changes, and North Carolina's Attorney General Roy Cooper says TVA is still dragging its feet.

Mr. COOPER: We don't want to wait another generation for clean air here in the North Carolina mountains.

SHOGREN: He says North Carolina is forcing its own power plants to cut emissions by two thirds over the next several years, and he wants TVA to do the same.

Mr. COOPER: If they would do that, this lawsuit goes away. But the problem is they don't want to enter into any legally binding, enforceable agreement with North Carolina or anybody else.

SHOGREN: The attorney general is not the only one who is impatient for clean air in North Carolina. Clay Ballentine is a doctor at the biggest hospital in the western part of the state. Here in the emergency room at Asheville's Mission Hospital, he regularly sees the agony air pollution causes his patients.

Dr. CLAY BALLENTINE (Mission Hospital, Asheville): When these people come in here with exacerbations of their emphysema or their asthma, it's as if they're smothering. They cannot breath. They can't get adequate air in and unless they have an effective rescue here in the emergency department or in the hospital, then they will die from this.

SHOGREN: Studies show that air pollution is deadly for people who live downwind from coal-fired power plants. It causes tens of thousands of Americans to die early from lung failure, heart attacks and strokes each year. And Ballentine says whenever the air quality is bad, local residents and tourists flock to the hospital with their diseases out of control.

Dr. BALLENTINE: When air pollution makes these people smother and come in here gasping literally for their lives, then it's time to get angry about it and do something about it.

SHOGREN: North Carolina's nuisance suit won't go to trial for many months, but the tactic is catching on. Last month, California filed a nuisance suit against several auto manufacturers for contributing to global warming.

Elizabeth Shogren, NPR News.

BLOCK: Those public nuisance lawsuits may have a hard time in court, but they could sway lawmakers on pollution issues. You can read about that at NPR.org.

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